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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
GLENN R. MILLER, :
:
Appellant :
: No. 2867 EDA 2015
Appeal from the PCRA Order August 25, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-1003861-1978
BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 22, 2016
Appellant, Glenn R. Miller, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas dismissing his Post Conviction
Relief Act1 (“PCRA”) petition based upon untimeliness and denying his
petition for writ of habeas corpus.2 Appellant contends the court committed
reversible error in denying him access to his written sentencing order dated
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
We note that Appellant filed a petition for writ of mandamus, which the
PCRA court treated as a petition for writ of habeas corpus. See infra.
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July 24, 1979. He avers in his PCRA petition that it was timely filed pursuant
to Missouri v. Frye, 132 S. Ct. 1399 (2012).3 We affirm.
The PCRA court set forth the procedural posture of this case as
follows:
On February 26, 1979, [Appellant] was convicted of
First degree Murder following a jury trial presided over by
the Honorable Bernard J. Goodheart. After post-trial
motions were denied, [Appellant] was sentenced to the
mandatory term of life imprisonment. [Appellant]
appealed to the Supreme Court of Pennsylvania, which
denied relief on May 25, 1982.
On January 11, 1983, [Appellant] filed a pro se [PCHA]
petition . . . . Counsel was appointed, and after review
[Appellant’s] PCHA petition was denied without a hearing
on March 23, 1984. [Appellant] appealed and the Superior
Court affirmed the dismissal on February 18, 1986. The
Supreme Court denied allocatur on April 17, 1990.
On December 5, 1996, [Appellant] filed a pro se petition
under the PCRA. After review, it was dismissed on March
20, 1997. The Superior Court affirmed the dismissal on
November 9, 1998. The Supreme Court denied allocatur
on March 16, 1999.
On May 15, 2012, [Appellant] filed the instant PCRA
petition, his third. . . .
PCRA Ct. Op., 10/16/15, at 1-2.
On July 14, 2014, Appellant filed a Petition for Writ of Mandamus
seeking a copy of his written sentencing order dated July 24, 1979. Pet.
3
In his pro se brief, Appellant does not address the timeliness of his PCRA
petition. He summarily avers, in his statement of the case, that he filed a
PCRA petition raising the Lafler/Frye claim. See Appellant’s Brief at VI.
We note further that in his PCRA petition, Appellant does not refer to Lafler
v. Cooper, 132 S. Ct. 1376 (2012).
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Writ Mandamus, 7/14/14, at 2. The PCRA court treated the petition for writ
of mandamus as a petition for writ of habeas corpus. The PCRA court
dismissed the PCRA petition as untimely and denied the petition for writ of
habeas corpus. This timely appeal followed. Appellant was not ordered to
file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant raises the following issue for our review: “Did the Honorable
Jeffrey P. Minehart, Judge, commit reversible error in denying Appellant
access to a copy of his written judicial order of sentence as rendered by trial
court Judge Bernard J. Goodheart dated July 24, 1979?” Appellant’s Brief at
V. In his PCRA petition, Appellant claims that the petition was timely under
the PCRA’s “newly recognized constitutional right” exception in 42 Pa.C.S. §
9545(b)(1)(iii), following the decision of the United States Supreme Court in
Frye. PCRA Pet., 5/15/12, at 8-9 (unpaginated).
This Court has stated:
Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
* * *
The PCRA time limitations, and exceptions thereto, are set
forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii). That section
states:
(b) Time for filing petition.—
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(1) Any petition under this subchapter, including a
second or subsequent petition, shall be filed within
one year of the date the judgment becomes final,
unless the petition alleges and the petitioner proves
that:
(i) the failure to raise the claim previously was
the result of interference by government officials
with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth or
the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
United States or the Supreme Court of
Pennsylvania after the time period provided in this
section and has been held by that court to apply
retroactively.
To invoke one of these exceptions, the petitioner must
plead it and satisfy the burden of proof. Additionally, any
exception must be raised within sixty days of the date that
the claim could have been presented. 42 Pa.C.S.A §
9545(b)(2). Our Supreme Court “has repeatedly stated
that the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court cannot hear
untimely PCRA petitions.”
Commonwealth v. Feliciano, 69 A.3d 1270, 1274-75 (Pa. Super. 2013)
(some citations omitted). “[A] judgment becomes final at the conclusion of
direct review, including discretionary review in . . . Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.” 42
Pa.C.S. § 9545(b)(3).
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Appellant filed the instant serial PCRA petition on April 18, 2012, and
thus, it is patently untimely.4 See 42 Pa.C.S. § 9545(b)(1). Therefore, we
determine whether, as averred by Appellant, any timeliness exception
applies in this case. The PCRA court concluded that the decisions of the
United States Supreme Court in Lafler and Frye did not create a new
constitutional right to overcome the time-bar. See PCRA Ct. Op. at 3. The
Feliciano Court considered this precise issue as follows:
[T]he Frye Court held “that, as a general rule, defense
counsel has the duty to communicate formal offers from
the prosecution to accept a plea on terms and conditions
that may be favorable to the accused.” Id. at 1408. In
determining whether counsel has satisfied this obligation,
the two-part test set forth in Strickland applies. See id.
at 1409. In Lafler, the Court explained that to meet the
prejudice prong of the Strickland test where the alleged
ineffectiveness of counsel involves the defendant’s
rejection of a plea offer, the defendant must show,
4
We note that
[t]he 1995 amendments to the Act, which adopted the
time-bar, also provide that if the judgment of sentence
became final before the January 16, 1996 effective date of
the amendments, a PCRA petition will be considered timely
if it is filed within one year of that date, or by January 16,
1997. But this grace period only applies to first post-
conviction petitions filed as of right, not serial petitions.
As this Court explained in Commonwealth v. Fahy, [737
A.2d 214 (Pa. 1999),] “where the judgment becomes final
on or before the [PCRA’s 1995] amendments’ effective
date, a petition will be deemed timely if the petitioner’s
first petition is filed within one year of the effective date of
the amendments.” [Id. at 218 (emphasis in original)].
Commonwealth v. Lesko, 15 A.3d 345, 361 (Pa. 2011).
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that but for the ineffective advice of counsel there is
a reasonable probability that the plea offer would
have been presented to the court (i.e., that the
defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of
intervening circumstances), that the court would
have accepted its terms, and that the conviction or
sentence, or both, under the offer's terms would
have been less severe than under the judgment and
sentence that in fact were imposed.
Lafler, 132 S. Ct. at 1385.
It is apparent that neither Frye nor Lafler created
a new constitutional right. Instead, these decisions
simply applied the Sixth Amendment right to counsel, and
the Strickland test for demonstrating counsel’s
ineffectiveness, to the particular circumstances at hand,
i.e. where counsel’s conduct resulted in a plea offer lapsing
or being rejected to the defendant’s detriment.
Feliciano, 69 A.3d at 1276-77 (emphasis added and footnotes omitted).
As Frye did not create a new constitutional right, Appellant’s claim
that this decision provided a time-bar exception under Section
9545(b)(1)(iii) is meritless. See id. at 1277. We find that this issue has
been settled by our decision in Feliciano, and thus detect no basis upon
which to conclude that the PCRA court erred in dismissing the instant
petition as untimely.
Lastly, we consider whether the PCRA court erred in denying
Appellant’s Petition for Writ of Mandamus. Appellant contends because the
Department of Corrections (“DOC”) did not have a copy of his sentencing
order, the court erred in denying his petition. Appellant’s Brief at 2. He
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avers the court erred in denying his writ “seeking the [c]ourt to compel the
Clerk of Court . . . to provide him with a copy of his written judicial order of
sentence, as rendered by the Honorable Bernard J. Goodheart, Judge of July
24, 1979.” Id.
The PCRA court treated Appellant’s petition for writ of mandamus as a
petition for writ of habeas corpus. PCRA Ct. Op. at 4. In Joseph v. Glunt,
96 A.3d 365 (Pa. Super. 2014), appeal denied, 101 A.3d 787 (Pa. 2014),
this Court opined:
Initially, we note that the Pennsylvania Supreme Court,
albeit in a per curiam opinion, has held that a claim that a
defendant’s sentence is illegal due to the inability of the
DOC to produce a written sentencing order related to [his]
judgment of sentence constitutes a claim legitimately
sounding in habeas corpus. Accordingly, we will treat [the
appellant’s] submission as a petition for a writ of habeas
corpus instead of a petition under the PCRA, which
typically governs collateral claims implicating the legality
of sentence.
Our standard of review in this context is axiomatic:
The ancient writ of habeas corpus is inherited from
the common law, referred to by Sir William
Blackstone as the most celebrated writ in the English
law. The writ lies to secure the immediate release of
one who has been detained unlawfully, in violation of
due process. [T]raditionally, the writ has functioned
only to test the legality of the petitioner’s detention.
Under Pennsylvania statute, habeas corpus is a civil
remedy [that] lies solely for commitments under criminal
process. Habeas corpus is an extraordinary remedy and
may only be invoked when other remedies in the ordinary
course have been exhausted or are not available. Our
standard of review of a trial court’s order denying a
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petition for [a] writ of habeas corpus is limited to [an]
abuse of discretion.
Id. at 368-69 (quotation marks and citations omitted).
In Glunt, this Court found that even if there was “no sentencing order
in the possession of the DOC or the trial court” the fact that the criminal
docket confirmed the appellant’s sentence was sufficient. Id. at 371. The
Glunt Court discerned no abuse of discretion where
[t]he trial court properly reviewed the record and
discovered a valid sentencing order contained therein.
Moreover, the trial court correctly concluded that, even in
the absence of a written sentencing order, the DOC had
continuing authority to detain [the appellant].
Id. at 372.
In the instant case, the PCRA court opined: “A review of the record
confirmed that [Appellant] was properly sentenced on July 24, 1979, and
[Appellant] failed to prove how the missing documentation established that
he is being held under an illegal sentence.” PCRA Ct. Op. at 4. We agree
no relief is due.
Appellant’s claim that there was no sentencing order is belied by the
record. In the case at bar, the docket reveals Judge Goodheart’s
handwritten sentencing order. A copy of the docket is attached to
Appellant’s brief. See Appellant’s Brief at App. 6f. We discern no abuse of
discretion by the PCRA court in denying his petition for writ of habeas
corpus. See Glunt, 96 A.3d at 371-72.
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Thus, we affirm the PCRA court’s order dismissing the PCRA petition as
untimely and denying his petition for writ of habeas corpus. See Glunt, 96
A.3d at 371-72; Feliciano, 69 A.3d at 1276-77.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2016
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